7 Steps to Effectuate International Service of Process under the

Hague Service Convention.

By Santiago A. Cueto

Given the international focus of my practice, I regularly serve process on parties located in

foreign jurisdictions. Most of the time it’s straightforward because many of the countries I deal

with are signatories to theConvention on the Service Abroad of Judicial and Extrajudicial

Documents in Civil or Commercial Matters, more commonly called the Hague Service

Convention.

The Hague Service Convention is a multilateral

accord that allows service of judicial documents

from one signatory state to another without

recourse to consular and diplomatic channels.

Contracting States include the United States,

China, the United Kingdom, Japan, South Korea,

India, Canada and France, as well as a number of

other European countries. And just a few months

ago, Australia signed onto the Convention.

The Convention greatly simplifies the service of

court documents on persons and companies located

overseas in civil or commercial matters.

While the available avenues of service under the convention in any particular case depend on the

reservations and service rules of the destination state (conveniently provided here), the steps

below are applicable to most contracting parties.

“The Hague Service Convention

greatly simplifies and enhances

the process for serving court

documents in foreign

jurisdictions. The framework

provided for service in

Contracting States is quicker and

more cost-effective than the

current methods used.”

It’s important to remember that under Rule 4(f)(1) of the Federal Rules of Civil Procedure, U.S.

litigants are required to resort to the mechanism set forth in the Convention if service is to be

made in any of the 61 signatory states.

Fortunately, effectuating service of process under the convention is refreshingly straightforward:

1. Download Form USM-94: All parties are required to use the "Request for Service"

(formUSM-94) provided by the U.S. Marshall’s Service.

2. Locate the Address of the Central Authority. The address and complete contact

details for all central authorities can be found at http://goo.gl/rdoyZf

3. List Applicant’s Name and Address. The attorney representing the person seeking

service should execute the portion of Form USM-94 marked "Identity and Address of

the Applicant." In addition to the name and address of applicant, be sure to include a

telephone and fax number.

4. Cite the relevant Statutory Authority: Most foreign central authorities know that

private U.S. lawyers are generally authorized by U.S. law to effect service, and that

Article 3 of the Convention permits counsel to complete the Convention request forms.

Nevertheless, some foreign central authorities continue to reject requests completed by

attorneys unless the request form cites the specific U.S. or state law authorizing

attorneys to serve process.

The best way to deal with this is to make sure that the statutory authority to serve the

document appears prominently on the request form (note there is no designated space

for this), stating that "service is requested pursuant to Rule 4(c)(2), U.S. Federal Rules

of Civil Procedure" which authorizes any person who is not a party and is not less than

18 years of age to serve a summons and complaint.

Requests for service in matters pending in state courts should specify that the request is

made pursuant to Rule 4(c)(2) of the U.S. Federal Rules of Civil Procedure and any

pertinent state law.

5. Signature and Date (Page 1): Sign and date the signature block on the Request

form. Do not complete the Certificate on Page 2 of the USM-94. This is the proof of

service which will be completed by the relevant central authority after service is

effected.

6. Provide Summary of the Document to be Served (Page 3): The applicant must also

complete this part of the USM-94 and identify the documents to be served. e.g.

Complaint for Damages, Petition for Injunctive Relief etc.

7. Send the Request: The completed request form and documents to be served and

accompanying translation of the documents to be served, in duplicate (one original,

one copy), should be mailed directly to the foreign central authority as provided by

Article 3. No translation of the form itself is required.

That’s it!

Here are some additional practice pointers to keep in mind:

Time Frame

The Convention does not impose an obligatory time frame. Most countries take 30-90 days to

effect service. Article 15, second full paragraph, sub-para (b) implies that the maximum time

frame is 6 months.

Country Specific Issues

In the United States, an attorney for a party is designated by statute as a "Judicial Officer" and

thus can send a service request directly to the "Central Authority" in the foreign state. However,

it is important to see whether other countries will accept a direct request from a foreign attorney.

Some countries, such as Israel, will not honor a service request unless it is executed by a judge or

clerk of the requesting court.

France and Italy permit incoming service on their residents directly by mail. By contrast,

Germany and Switzerland and most current or former communist countries require incoming

service to be effected exclusively through their Central Authorities.

Other methods of service

In addition to the method set out above, the Service Convention allows a number of other

methods for service. Where the State in which the document is to be served allows, documents

can be transmitted: a) by posting the documents directly to the person to be served; b) through

consular or diplomatic channels; or c) by sending the documents directly to a person authorized

to serve the documents in the foreign State. Note that Fed. R. Civ. P. 4(f)(1) authorizes use of

these alternatives where the receiving state has not objected.

Conclusion

The Hague Service Convention greatly simplifies and enhance the process for serving court

documents in foreign jurisdictions. The framework provided for service in Contracting States is

quicker and more cost-effective than the current methods used.

Once you’ve secured service of process on a foreign party, the next step is to gather all necessary

evidence. That will be the subject of an upcoming post dealing with the Hague Convention on

Taking Evidence Abroad in Civil or Commercial Matters.

Santiago Cueto